# Cease and Desist! (fwd)

Priscilla Purnick (purnick@aecom.yu.edu)
Fri, 7 Jun 1996 11:30:56 PDT

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    DISCLAIMER:  This is information culled by my husband who is a patent
    agent at a firm in NYC. He is not an attorney. He is restricted by law
    from giving legal advice.

    Cil (Priscilla Purnick)

    ---------- Forwarded message ----------
    Date: Thu, 6 Jun 1996 16:44:06 -0400
    From: Thomas Phalen <TPhalen@kayescholer.com>
    To: Priscilla Purnick <purnick@aecom.yu.edu>
    Subject: Re: Cease and Desist! (fwd)

         I have spoken with one of our senior associates about this situation
         and the answer is not that the complaintant does not have a leg to
         stand on but rather that he does not have a winning case.  The
         complaintant has the right to challenge the use of his copyrighted
         term "Mystical Crossroads", but he would have to prove the following
         to be awarded anything:
         1)  CONFUSION
            The infringed use of a MOO room entitled - Mystical Crossroads -
         causes confusion with his company Mystical Crossroads.  This could be
         possible if the company deals with the internet or was so well known
         that a person would assume association with that company when they see
         anything using its name.  If I went to BAYMOO and saw a room called
         Microsoft, I might think that it was operated and owned by Bill Gates.
          My confusion could lead me to believe that what was posted in that
         room was sanctioned by Bill Gates and his cronies.  Accordingly, Bill
         Gates would request that the room not be named Microsoft for fear that
         people would associate material produced by this room with his
         company.  This leads me to my next point.
         2) DAMAGES
            The infringed use of the room entitled Mystical Crossroads has
         caused loss of revenue or potential revenue.  Again, I will use the
         Microsoft analogy - In the room entitled Microsoft is a posting
         stating that Microsoft's most recent software is buggy.  Records at
         the MOO reveal 500 visitors to the room, all of whom obviously utilize
         computers.  Microsoft can estimate damages to the sales of their
         software from these facts alone.  Also, if a scandal erupts wherein an
         infamous pedophile was reported in the news to use "Microsoft" to lure
         children, Microsoft would claim huge damages.  The fact that the
         pedophile used the room entitled Microsoft at a MOO which is not
         sanctioned by Microsoft to lure children means nothing.  When people
         read the news report, they associate the term Microsoft with the
         company.
            Clearly the aforementioned scenario is not the case here, but you
         have to understand the sensitivity of a company when they see
         something with their name on it.  An explaination to the President of
         the company concerning the nature of the room and how it could not
         possibly be confused with his company may not persuade him to stop
         demanding that the room's name be changed.  He will never be able to
         prove damages if nothing is done to cause confusion with his company,
         but he may continue in his efforts to stop all use of the term
         "Mystical Crossroads" for fear that at some time in the future the
         room might cause harm to the name of his company.
            A defense against his complaint is if you can prove that the room
         Mystical Crossroads has simularities with a famous and noncopyrighted
         use of the term.  In other words, if Shakespeare used the term in one
         of his published works and the room is filled with articles from that
         Shakespearian reference, the confusion would clearly not be with a map
         company.

    NOTE DISCLAIMER AT THE TOP....these are only suggestions, not legal advise.

           I may suprise you with my advise here but I feel it is prudent,
         BAYMOO should first try to discuss what the point of the MOO rooms are
         with Richard Kowalski and alleviate his fears that they would be
         confused with his company.  If that does not work, they should request
         proof of copyright from Richard Kowalski.  If he supplies it, they
         should rename the room.  Litigation is expensive.  He would probably
         not be awarded a penny, but the cost of defending a suit is not worth
         defending the name of a room.